Highlights of USEPA All Appropriate Inquiries (AAI) Final Rule and Revised ASTM Phase I Environmental Site Assessment

chapter 9b Highlights of USEPA All Appropriate Inquiries (AAI) Final Rule and Revised ASTM Phase I Environmental Site Assessment Barry A. Cik, PE, CP, DEE, QEP, CHMM, REM Chief Engineer G.E.M. Testing and Engineering Labs Cleveland, Ohio

chapter 9b Highlights of USEPA All Appropriate Inquiries (AAI) Final Rule and Revised ASTM Phase I Environmental Site Assessment * Barry A. Cik, PE, CP, DEE, QEP, CHMM, REM Chief Engineer G.E.M. Testing and Engineering Labs Cleveland, Ohio I. HISTORY A. CERCLA. CERCLA (1980) introduced strict, joint and several liability for property contaminated with CERCLA hazardous substances, even if the contamination was caused by prior owners or users. The basic rule is that if you buy the property, you buy the contamination. B. SARA Amendments. SARA (1986) lessened the impact with the innocent landowner (innocent purchaser) defense. However, there was no guidance how to obtain the defense. C. Brownfields Amendments. The Small Business Liability Relief and Brownfields Revitalization Act 2002 now provides that guidance through the AAI Final Rule. D. Two New Landowner Liability Protections. The 2002 Brownfields Amendments, in addition to maintaining the (a) innocent landowner defense from SARA, also created two additional protections to CERCLA liability, the (b) contiguous property owner and the (c) bona fide prospective purchaser. * 2005 G.E.M. Testing and Engineering Labs. Phone: (216) 781-4120. Web site: www.gemtesting.com. Highlights of USEPA "All Appropriate Inquiries" 9b.1

E. AAI Rule. Conducting all appropriate inquiries (AAI) provides all three liability protections. The AAI Final Rule goes into effect November 1, 2006. Its use is optional until then. F. ASTM Phase I. Because there was no guidance originally from SARA on how to become an innocent purchaser, ASTM created a voluntary Phase I Environmental Site Assessment Standard Practice in 1993, which continues to date (updated and revised several times). G. ASTM Phase I Revisions. ASTM has now revised its Phase I Standard Practice once again in order to comply with the AAI Final Rule. The U.S. EPA has referenced the revised ASTM Phase I (E 1527-05), which allows the ASTM procedures to be used to comply with AAI (although there is no mandatory requirement to use the ASTM Phase I). H. General Due Diligence. The ASTM Phase I is also used for general real estate due diligence. The revised ASTM Phase I will continue to be used similarly. I. United States EPA Brownfield Grant Recipients. Contaminants of concern include CERCLA hazardous substances, pollutants or contaminants, petroleum/petroleum products and controlled substances. J. Federal CERCLA Law Only. AAI (and ASTM) relates to federal CERCLA liability and has no direct bearing on other legal venues (e.g., RCRA, wetlands, state hazardous waste laws, state voluntary action programs, toxic torts, property injury claims, citizen suits, etc.). II. LANDOWNER LIABILITY PROTECTIONS All the following CERCLA landowner liability protections (as applicable) are available to buyers of commercial/industrial real estate properties by doing an AAI/Phase I Site Assessment. In particular, property owners who document that they are not responsible for any contamination, and are and were not affiliated with a liable party, and do not add any new contamination, and comply with all relevant continuing obligations, receive U.S. EPA CERCLA liability protection. A. Innocent Landowner (Innocent Purchaser). The buyer did not know and had no reason to know that any hazardous substance was disposed of at the facility. 9b.2 Environmental Law Seminar

B. Contiguous Property Owner. Extends liability protection for contamination that originated on adjoining properties if the buyer was unaware of the contamination. This protects parties that are essentially victims of pollution incidents caused by their neighbors actions. C. Bona Fide Prospective Purchaser. Provides protection to buyers who knew that the property was contaminated at the time of acquisition as long as the buyer can demonstrate that all contamination occurred prior to acquisition. For the first time since the enactment of CERCLA in 1980, a person may purchase property with the knowledge that the property is contaminated without being held potentially liable for the cleanup of the contamination. U.S. EPA. (http://www.epa.gov/swerosps/bf/aai/compare_astm.pdf, page 1, Oct. 2005.) 1. Note 1: a buyer who adds any new contamination to the property would lose AAI liability protections. 2. Note 2: depending on the circumstances of the property, a buyer (owner) may have various continuing obligations, in order to maintain landowner liability protection, which may be required to protect human health and the environment (see VI.). III. NEW INCENTIVES A. Incentive to Know. Until now, the incentive has generally been not to want to find contamination, since the only available landowner protection was the innocent purchaser defense. This incentive was generally shared by all parties (buyer, seller, lender, attorney and broker). Now, AAI landowner liability protections provide an incentive for a buyer to document that any and all contamination occurred prior to acquisition. B. Incentive to Buy Brownfields Properties. 1. AAI provides greater incentive to buy properties with a history of industrial activities. Although AAI provides protection to any commercial/industrial property purchaser, it is especially beneficial to purchasers of older industrial brownfields type properties. 2. Although AAI is intended to benefit buyers, it may benefit sellers as well, in that it will now conceivably make it easier for a seller to sell a questionable property. Note: especially for a brownfields type property, the buyer should weigh the results of the AAI, any likely continuing obligations, the price and value of the property, the intended use of the property and the buyer s own risk tolerance prior to closing. Highlights of USEPA "All Appropriate Inquiries" 9b.3

IV. BUYER RESPONSIBLE FOR THE AAI ASSESSMENT A. Buyer Should Do Inquiry. The statute states that it is the person claiming any of the landowner protections who must do the inquiry. However, the AAI Final Rule makes provisions for an AAI investigation conducted by one party (including the seller) to be used by another party. B. If Phase I Done by Seller. An assessment originally done on behalf of another party requires extra procedures in order to obtain liability protections for the buyer. These include: 1. Reviewing and updating all the information collected; 2. Determining whether the report meets the objectives and performance factors and is in compliance with AAI; and 3. Additional inquiries regarding relevant specialized knowledge held by the buyer and the environmental professional, the relationship between purchase price and fair market value if not contaminated and commonly known or reasonably ascertainable information. Note: it is preferable for the buyer to conduct the AAI. 1. Some portions of an AAI must be done by, or on behalf of, the buyer. 2. Buyers and sellers do not have the same goals. A buyer may prefer more detailed documentation in support of AAI protections than a seller may care to do. 3. It is also conceivably easier to challenge an AAI done on behalf of a seller as to whether it met all the performance factors required by AAI. 4. A reliance letter, certification to buyer, assignment or other such device which simply relies on the seller s AAI/Phase I may provide for contractual transfer of liability between the parties. However, that does not provide for AAI protections to the buyer from U.S. EPA because the AAI itself was done on behalf of the seller and not the buyer. V. RELATIONSHIP BETWEEN AAI AND ASTM PHASE I A. AAI Approves Use of ASTM Phase I. The AAI Rule does not require that the revised ASTM Phase I (E 1527-05) be used to achieve AAI. However, the U.S. EPA has referenced it in the Final Rule as being an acceptable approach to conducting AAI. The agency [EPA] has determined that this voluntary consensus standard is consistent with [the] final rule... Persons conducting all appropriate inquiries may use the procedures included in the ASTM E 1527-05 standard to comply with [the] final rule. 9b.4 Environmental Law Seminar

B. An ASTM Phase I Is Not Necessarily an AAI. The ASTM Phase I can be used for a broader range of purposes than just AAI. In particular, the ASTM Phase I can also be used for situations where the user is not concerned about qualifying for the landowner liability protections. (See also ASTM 3.2.62, 3.2.30, 1.1, 4.1, 4.2.1, and 6.7.) Note: When ordering or reviewing an ASTM Phase I, it may be prudent to clarify whether the intention is to satisfy AAI, and not just to be in compliance with the ASTM Phase I. C. Terminology. The following terms are not identical (even if the marketplace interchanges them): 1. All Appropriate Inquiries (AAI). Statutory/regulatory term for achieving U.S. EPA CERCLA liability protections. The purpose of an AAI is identify releases and threatened releases of hazardous substances on, at, in, or to the property that would be the subject of a response action for which a liability protection would be needed... 2. Phase I Environmental Site Assessment. ASTM term for determining whether a site has recognized environmental conditions (RECs). Identifying RECs constitutes the ASTM standard for Environmental Site Assessments. 3. Environmental due diligence. A more general term to describe the process of inquiry into the environmental characteristics of a property. VI. CONTINUING OBLIGATIONS A. AAI does protect landowners from cleanup liability for contamination caused by prior property owners and users. AAI does not affect any other obligations relating to the contamination. 1. Example 1. A buyer does AAI and finds no evidence of contamination. The buyer is an innocent purchaser. After acquiring the property, the buyer/new owner finds solvents flowing on the ground and seeping into the groundwater. Does the buyer/new owner have the liability to clean up all the contamination? No. Does the buyer have some responsibilities, e.g., stop the release, etc.? Absolutely yes. Highlights of USEPA "All Appropriate Inquiries" 9b.5

2. Example 2. A buyer does AAI, finds evidence that the site is a love canal and documents that all contamination occurred prior to acquisition. If the buyer chooses to close, the buyer/new owner can still be protected from cleanup liability as a bona fide prospective purchaser. However, this buyer also still has continuing obligations, e.g., providing legally required notices, cooperating with CERLCA informational requests, etc. B. Continuing Obligations to Achieve and Maintain Landowner Liability Protection Include: 1. Complying with, and not impeding the effectiveness of, land use restrictions, including: a. Governmental controls (e.g., zoning); b. Proprietary controls (e.g., covenants, easements); c. Enforcement documents (e.g., orders, consent decrees); and d. Informational devices (e.g., land record/deed notices). 2. Taking reasonable steps with respect to any hazardous substance releases, including: a. Stopping continuing releases; b. Preventing threatened future releases; and c. Preventing or limiting human, environmental or natural resource exposure to earlier hazardous substance releases. 3. Providing full cooperation, assistance, and access to persons who are authorized to conduct response actions or natural resource restoration. 4. Complying with information requests or administrative subpoenas. 5. Providing all legally required federal, state or local notices with respect to the discovery or release of any hazardous substances at the facility. C. The U.S. EPA has indicated that, except for unusual circumstances, the reasonable steps provision with respect to any releases that would be expected of a protected landowner would not be the extensive cleanup obligation that would be expected of a CERCLA liable party. By making the landowner liability protections subject to the obligation to take reasonable steps, EPA believes Congress intended to balance the desire to protect certain landowners from CERCLA liability with the need to ensure the protection of human health and the environment. In requiring reasonable steps from 9b.6 Environmental Law Seminar

parties qualifying for landowner liability protections, EPA believes Congress did not intend to create, as a general matter, the same types of response obligations that exist for a CERCLA liable party (e.g., removal of contaminated soil, extraction and treatment of contaminated groundwater). ( Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ( Common Elements ), U.S. EPA, Mar. 6, 2003, pg. 9-10. http://www.epa.gov/ compliance/resources/policies/cleanup/superfund/common-elem-guide.pdf). VII. COMPONENTS OF ALL APPROPRIATE INQUIRIES The following are the components of an All Appropriate Inquiries as per the U.S. EPA AAI Final Rule, in accordance with the criteria in CERCLA 101(35)(B)(iii): A. Responsibility of the Environmental Professional. 1. Inquiry must be done by an Environmental Professional (EP). Note: new definition of who is an Environmental Professional. 2. Interview past and present owners, operators, and occupants of the facility. Note: may need to include prior owners and occupants. 3. Review historical sources of information. Note: historical sources are now more emphasized, and must go back to first use. 4. Review federal, state, tribal and local government records. Note: local government records are now mandatory. 5. Visually inspect the subject property and adjoining properties. Note: includes adjoining properties (visual only from property lines). 6. Include the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation. B. Responsibility of the Buyer. 1. Include relevant specialized knowledge or experience on the part of the buyer. Note: new requirement. Buyer should provide this information to the EP. Highlights of USEPA "All Appropriate Inquiries" 9b.7

2. Include the relationship of purchase price to the value of the property (as if not contaminated). Note: new requirement. Buyer should provide this information to the EP. (A formal real estate appraisal is not required for this item.) Note: regarding those items which are the responsibility of the buyer, the AAI Final Rule expects the buyer to convey all such relevant information to the Environmental Professional. Otherwise, data gaps may result. C. Responsibility of the Buyer or the Environmental Professional. Search recorded federal, state, tribal, and local environmental cleanup liens against the facility. Note: new requirement. This information is generally obtained from the title search. D. Responsibility of the Buyer and the Environmental Professional. Include commonly known or reasonably ascertainable information about the property. Note: this requirement is shared both by the buyer and the EP. VIII. ENVIRONMENTAL PROFESSIONALS A. Previously No Definition. Until now, there has essentially been no definition of an environmental professional (neither from ASTM nor from the government). B. AAI Defined. Environmental professionals now have minimum education and experience requirements. These include: (a) professional engineer (PE) or professional geologist (PG) plus three years full-time relevant experience; (b) other government issued license or certification to perform environmental inquiries plus three years full-time relevant experience; (c) a baccalaureate or higher degree in science or engineering plus five years full-time relevant experience; or (d) 10 years of full-time relevant experience. C. Environmental Professional Declarations. In addition to possessing minimum education and experience requirements, the environmental professional must declare several statements in every AAI (including ASTM Phase I) report, including the following: I (or we) have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. 9b.8 Environmental Law Seminar

D. Data Gaps. The environmental professional must identify data gaps that affect the ability to identify conditions indicative of releases or threatened releases, comment on their significance, and identify the sources of information consulted to address or fill those gaps. If appropriate, sampling and analysis may be conducted to fill data gaps. E. Environmental Professional Opinion. The environmental professional must provide: 1. An opinion on whether the AAI has identified conditions indicative of releases or threatened releases of hazardous substances; 2. Comments on the significance of any data gaps; and 3. An opinion regarding additional appropriate investigations, if any may be necessary. IX. GOVERNMENT RECORDS SEARCHES A. Local Records Mandate. In addition to federal and state records reviews (generally similar to the prior ASTM standard), AAI mandates that local government records must be reviewed (subject to environmental professional judgment). ASTM has in the past only required federal and state records. B. Institutional Controls and Environmental Cleanup Liens. Institutional Controls (aka, activity and use limitations, restrictions of record on title, covenants and restrictions, restrictive covenants, land use controls, land use restrictions, which also include zoning restrictions, building or excavation permits, well drilling prohibitions, and which may include engineering controls, etc.) and recorded federal, state and local environmental cleanup liens must be searched for the property. (Note: ASTM defines both institutional controls and engineering controls as being subsets of Activity and Use Limitations (AULs).) X. HISTORICAL RESEARCH A. Historical Research Emphasized. AAI emphasizes the need to review historical sources of information in order to properly characterize previous uses and occupancies of the property and the potential for contamination. B. First Developed Use. AAI requires that historical searches go back to the first developed use of the property, i.e., when first used for residential, agricultural, commercial, industrial or governmental purposes. Highlights of USEPA "All Appropriate Inquiries" 9b.9

C. Professional Judgment. AAI leaves to the professional judgment of the environmental professional (a) the specific types of historic information; and (b) flexibility regarding comprehensiveness, depending on the other available information. XI. INSPECTION AND INTERVIEWS A. Inspect Subject Property and Adjoining Properties. In addition to an inspection of the property, AAI requires that there be a visual inspection of adjoining properties. This may be done from the subject property line, public right-of-way, aerial photography, etc. There is no requirement to gain access to the adjoining properties or to communicate with their owners or occupants (except when the subject property is abandoned). B. Who Conducts the Inspection? The AAI Final Rule specifically recommends that the inspection be done by an Environmental Professional, although it is not mandated. C. Interview Current and Past Owners and Occupants. 1. The current owner and occupant of the property must be interviewed. 2. Where there may be more than one owner or occupant, interviews must be conducted with the major occupants and those occupants that may have been or are using, storing, treating, handling, or disposing of hazardous substances. 3. In addition, current and past facility managers; past owners, occupants, operators or employees of current and past occupants should be interviewed as necessary. 4. For abandoned properties, one or more owners or occupants of neighboring properties must be interviewed. 5. The AAI Final Rule does not prescribe particular questions that must be asked. XII. PHASE IIs A. No Requirement for Phase II. AAI does not require a Phase II in order to get any of the property owner liability protections. ASTM also does not require a Phase II. However, a buyer may elect to do sampling and analysis, if necessary, in order to document that all contamination occurred prior to acquisition. 9b.10 Environmental Law Seminar

B. May Sometimes Need to Be Done. However, the AAI Final Rule does state that: 1. [S]ampling and analysis may help explain existing data gaps. 2. [S]ampling and analysis may be valuable in determining the possible presence. 3. A court may conclude that, under the circumstances of a particular case, sampling and analysis should have been conducted. C. Relevant for Bona Fide Prospective Purchaser Protection. The question whether to obtain a Phase II could be especially relevant where it appears that the property has been contaminated and where the buyer does want to receive the bona fide prospective purchaser liability protection. D. ASTM Does Not Automatically Provide for Phase II Recommendations. The ASTM Phase I specifically states that recommendation for Phase II testing...[is] beyond the scope of this practice, and should only be included in the report if so specified in the terms of engagement between the user and the Environmental Professional. Note: Phase II recommendations are dependent on the goals of the buyer. For example, a buyer intending on using the property for warehousing of benign consumer goods may not need the same AAI documentation as would be the case if an industrial facility was being planned for the property. On the other hand, if a voluntary cleanup was being planned or a school was intended on being built, much more intensive sampling and analysis would be needed. XIII. OPTIONS In a number of areas, the AAI Final Rule offers recommendations (explicitly, implicitly, or contextually) which may go beyond its own minimum requirements or those of the revised ASTM Phase I. Some particular examples include historical research, local records reviews, and who conducts the inspection. (The AAI Final Rule explicitly recommends that the property inspection be done by an Environmental Professional. It is not required, though, and ASTM also does not require this.) XIV. BUYER-SELLER AGREEMENTS Buyer-seller agreements do not change AAI requirements. For example, if a property is sold as is, the buyer who performs AAI still receives the AAI landowner liability protections, and the seller still retains any relevant CERCLA environmental liability. Moreover, when a buyer contractually accepts responsibility for a seller s obligations, the U.S. EPA still considers the seller as the responsible party if the seller was the one who contaminated the property. Highlights of USEPA "All Appropriate Inquiries" 9b.11

XV. THE AAI/PHASE I REPORT A. Time period. The time period (shelf life) for doing an AAI for inspections, interviews, review of government records, and recorded environmental cleanup lien searches is six months prior to acquisition. Otherwise, the shelf life is one year. An AAI that is older than one year must be updated in its entirety. B. Prior to Property Acquisition: The report must be completed prior to property acquisition. C. How Much Research Is Enough? Exhaustive and costly efforts do not have to be made to access all available sources of data and find every piece of data and information about a property, nor does the rule require that duplicative information be sought from multiple sources... The sequence of activities and the sources of information used to collect any required information is left to the judgment and expertise of the environmental professional, provided that the overall objectives and the performance factors established for the final rule are met. (AAI Final Rule Preamble, IV, L, Federal Register pg. 66086-87, http://www.epa.gov/swerosps/bf/aai/aai_final_rule.pdf.) D. Format and Content. The provisions of the final rule allow for the property owner (or grantee) and any environmental professional engaged in the conduct of all appropriate inquires for a specific property to design and develop the format and content of a written report that will meet the prospective landowner s (or grantee s) objectives and information needs in addition to providing documentation that all appropriate inquires were completed prior to the acquisition of the property. (AAI Final Rule Preamble, IV, D, Federal Register pg. 66078, http://www.epa.gov/swerosps/bf/aai/aai_final_rule.pdf.) E. No Government Reporting Requirements. (The) rule contains no new requirements to notify or submit information to EPA or any other government entity. (AAI Final Rule Preamble, IV, C, Federal Register pg. 66077, http://www.epa.gov/swerosps/bf/aai/aai_final_rule.pdf.) 9b.12 Environmental Law Seminar

Exhibit 1: Crosswalk between the All Appropriate Inquiries Rule and the ASTM E 1527-00 Standard Definitions and Requirements Final AAI Standard 1 ASTM E 1527-00 ASTM E 1527-05 Purpose 312.1(a) 1.1 1.1, 6.7 Applicability 312.1(b) 4.1, 4.2 Scope 312.1(c) 1 1 Disclosure Obligations 312.1(d) Definition of Abandoned Property 312.10 Not specified Not defined 4.1, 4.2, 4.5.3 Not specified 3.2.1 Definition of Adjoining Properties 312.10 3.3.2 3.2.4 Definition of Data Gap 312.10 Not defined 3.2.20 Definition of Environmental Professional 312.10 3.3.12 3.2.29; Appendix X2 Definition of Relevant Experience 312.10 Not Appendix defined X2 Definition of Good Faith 312.10 Not defined 3.2.35 Definition of Institutional Controls 312.10 3.2.17 3.2.42 References 312.11 2 2 List of Components in All Appropriate Inquiries Shelf Life of the Written Report Reports Prepared for Third Parties 312.20(a) 6 6, 7 312.20(a)- (b) 312.20(c)- (d) 4.6, 4.7 4.6, 4.7 4.7 4.7 Objectives 312.20(e) 6.1 7.1 Contaminants of Concern 312.20(e) 1.1 1.1 Performance Factors 312.20(f) 7.1 8.1 Data Gaps 312.20(g) 7.3.2 12.7 Interview with Current and Past Owners and Occupants of the Subject Property 312.23(b), 312.23(c) 9 10 Highlights of USEPA "All Appropriate Inquiries" 9b.13

Interview with Neighboring or Nearby Property Owners or Occupants in the Case of Inquiries Conducted at Abandoned Properties Review of Historical Sources: Suggested Sources Review of Historical Sources: Period to Be Covered Not specified Searches for Recorded Cleanup Liens 312.25 Records of Activity and Use Limitations (e.g., Engineering and Institutional Controls) 312.23(d) 10.5.5 312.24(a) 7.3.4 8.3.4 312.24(b) 7.3.2 8.3.2 5.2, 7.3.4.4 6.2, 6.4, 8.3.4.4, 10.8.1.10 312.26 5.2 8.3.4.4 Government Records Review: List of Records 312.26(a), 312.26(b) 7.2 8.2 Government Records Review: Search 312.26(c), Distance 312.26(d) 7.1.2, 7.2 8.1.2 Site Visit: Requirements 312.27(a), 312.27(b) 8 9 Site Visit: Limitations 312.27(c) 8.2.4 9.2.4, 9.4 Specialized Knowledge or Experience 312.28 5.3 6.3, 12.3 The Relationship of the Purchase Price to the Value of the Property Commonly Known or Reasonably Ascertainable Information about the Property 312.29 5.4 6.5 312.30 7.1.4 4.1, 6.6 The Degree of Obviousness of the Presence or Likely Presence of Contamination 312.31 11.6, 11.7 12.6, 12.8, X.3 Signed Declarations to Be Included in the Written Report 312.21(d) 11.7, 11.11 12.12, 12.13 1 Citations in column 2 are to Title 40 of the Code of Federal Regulations (e.g., 40 C.F.R. 312.20). 9b.14 Environmental Law Seminar

Exhibit 2: Summary of Main Differences between the Final All Appropriate Inquiries Regulation and the ASTM E 1527-00 Standard Main Differences Final AAI Standard ASTM E 1527-00 Definition of Environmental Professional Interview with Current Owner and Occupants of the Subject Property Interview with Past Owner and Occupants Interview with Neighboring or Nearby Property Owners or Occupants Review of Historical Sources: period to be covered Records of Activity and Use Limitations (e.g., Engineering and Institutional Controls) and Environmental Cleanup Liens Specific certification/license, education, and experience requirements Applies only to individuals supervising all appropriate inquiries Mandatory Interviews with past owners and occupants must be conducted as necessary to achieve the objectives and performance factors in 312.20(e)-(f) Mandatory at abandoned properties From the present back to when the property first contained structures or was used for residential, agricultural, commercial, industrial or governmental purposes No requirement as to who is responsible for the search Scope of environmental cleanup lien search includes those liens filed or recorded under federal, state, tribal or local law No specific certification, licensing, education or experience requirements Applies to all individuals involved in conducting all appropriate inquiries A reasonable attempt must be made to interview key site manager and reasonable number of occupants Not required, but must inquire about past uses of the subject property when interviewing current owner and occupants Discretionary All obvious uses from the present back to the property s first obvious developed use or 1940, whichever is earlier User s responsibility The search results must be reported to the environmental professional Scope of environmental cleanup lien search is limited to reasonably ascertainable land title records Highlights of USEPA "All Appropriate Inquiries" 9b.15

Government Records Review Site Inspection Contaminants of Concern Data Gaps Shelf Life of the Written Report Federal, state, tribal and local Records Visual inspection of subject property and adjoining properties required Limited exemption with specific requirements if the subject property cannot be visually inspected Parties seeking CERCLA defense: CERCLA hazardous substances EPA Brownfields Grant recipients: CERCLA hazardous substances, pollutants or contaminants petroleum/petroleum products controlled substances Requires identification of sources consulted to address data gaps and comments on significance of data gap with regard to the ability of the environmental professional to identify conditions indicative of releases and threatened releases One year, with some updates required after 180 days Federal and state records Local records/sources at the discretion of the environmental professional Visual inspection of subject property required. No exemption. No specific requirement to inspect adjoining properties; only to report anything actually observed CERCLA hazardous substances and petroleum products Generally discretionary. Sources that revealed no findings must be documented. Updates of specific activities recommended after 180 days 9b.16 Environmental Law Seminar

Exhibit 3: Required Qualifications for an Environmental Professional Definition Certification/License, Education and Relevant Experience Requirements All APPRORIATE INQUIRIES FINAL RULE A person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases (per 312.1(c)) on, at, in or to a property, sufficient to meet the objectives and performance factors in 312.20(e) and (f) ( 3.10). Hold a current Professional Engineer s or Professional Geologist s license and have the equivalent of three years of full-time relevant experience OR Hold a current registration from a state, tribe, U.S. territory, or the Commonwealth of Puerto Rico and have the equivalent of three years of full-time relevant experience OR Be licensed or certified by the federal government, a state, tribe, U.S. territory, or the Commonwealth of Puerto Rico to perform environmental inquiries as defined by the AAI rule ( 312.21) and have the equivalent of three years of full-time relevant experience ASTM E 1527-00 A person possessing sufficient training and experience necessary to conduct a site reconnaissance, interviews and other activities in accordance with [the ASTM standard], and from the information generated by such activities, having the ability to develop opinions and conclusions regarding recognized environmental conditions in connection with the property in question. An individual s status as an environmental professional may be limited to the type of assessment to be performed or to specific segments of the assessment for which the professional is responsible. ( 3.3.12). No requirements Highlights of USEPA "All Appropriate Inquiries" 9b.17

Additional Requirements A person who does not hold a relevant license or certificate may still qualify as an environmental professional if he or she has a baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and have the equivalent of five years of full-time relevant experience A person who does not have a relevant license or certificate and does not hold a university degree in a discipline of engineering or science can qualify as an environmental professional if he or she Has the equivalent of ten years of full-time relevant experience Remain current in his or her field through participation in continuing education or other relevant activities None 9b.18 Environmental Law Seminar